Audit, Compliance and Risk Blog

When companies claim they’re reducing their environmental impacts, how does anyone distinguish actual improvements from greenwashing? A growing number of national and international nonprofits and industry trade associations offer benchmarks and standards that companies can subscribe to, and third parties offer their services to evaluate and validate claims. Effective October 1, 2018 the state of Delaware has added a governmental layer, which Delaware companies can use to submit information and claims under penalty of perjury in order to gain formal state acknowledgement. The state claims this is the first such law.

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Beginning January 1, 2019, a new California law establishes extensive requirements for proper management of waste pharmaceuticals and “sharps.” These new provisions complement – but aren’t actually well-connected to -- medical waste management requirements (I outlined typical state-based requirements here), and workplace provisions to protect workers from “bloodborne pathogens” that may be present because of health and medical procedures and the wastes they generate (I discussed OSHA’s “BBP” Standard here). The rest of this note summarizes these new requirements, adopted by Senate Bill (SB) 212 (Jackson).

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If you’re contemplating significant changes at a facility that’s regulated as a “major source” under the Clean Air Act (CAA), you’d better figure out whether those changes will “modify” the source enough to trigger significant pre-construction review and permitting by the US Environmental Protection Agency (EPA) or its state or local delegee. The likely answer to questions like yours has changed with CAA amendments and regulations over the decades. EPA has just changed them again, after ending a decade long year delay of a regulatory “interpretation” published in the last week of George W. Bush’s presidency, and stayed by the Obama-era EPA throughout his presidency, and now reaffirmed and activated by the Trump-era EPA.

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On October 29, a large multi-sector group of organizations announced a major initiative to eliminate plastic waste and pollution - the New Plastics Economy Global Commitment. The group is sponsored by the Ellen MacArthur Foundation, and intends to respond to dire projections of the environmental implications of plastic waste with. Informational materials highlight a projection from the United Nations Environment Program (UNEP) that more than 8 million tons of plastics end up in the world’s oceans annually, and that if present trends continue there will be more plastic than fish in the oceans by 2050.

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Although carbon dioxide (CO₂) is the most common and most-discussed greenhouse gas (GHG), it is by no means the only one. And on a per-unit basis, it is by no means the most potent GHG either. Air quality agencies and climate change scientists also focus attention on so-called “short-lived climate pollutant (SLCP)” means an agent that has a relatively short lifetime in the atmosphere, from a few days to a few decades, and a warming influence on the climate that is more potent than that of carbon dioxide. Individual jurisdictions have addressed individual SLCPs, but comprehensive approaches have been limited.In 2014, California legislation assigned that state’s Air Resources Board (ARB) to adopt a SCLP Reduction Strategy (I wrote about the legislation and 2016’s draft strategy here).

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While domestic climate politics in the U.S. and Canada generate hot air about the reality and urgency of climate change, climate science proceeds largely on its own pathways, and climate policies to reduce greenhouse gas (GHG) emissions are being proposed and developed by a wide variety of entities. On November 23 – often referred to as “Black Friday” by retailers and shoppers in the U.S., regardless of their attitudes about global warming – the U.S. government’s U.S. Global Change Research Program (USGCRP) delivered urgent recommendations for aggressive policies. This Fourth National Climate Assessment (NCA4) builds on last year’s Climate Science Special Report (which I wrote about here).

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On October 24, the US Chemical Safety and Hazard Investigation Board (which uses the truncated acronym CSB) issued a “Call to Action: Combustible Dust” seeking information about what it has long considered a major industrial hazard. Since 1980 CSB has identified hundreds of industrial accidents involving dust that have injured nearly 1000 workers and killed more than one hundred. In 2006 CSB issued 4 formal recommendations to the Occupational Safety and Health Administration (OSHA) to enhance that agency’s regulation of occupational hazards from combustible dust – particularly from possible fires or explosions, with mixed responses.

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Summer brought its inevitable share of rain, and even flooding and hurricanes in some places. Residual moisture increases the possibility of mold infestations, which might endanger people in your workplace. The Occupational Safety and Health Administration (OSHA) and state worker protection agencies have longstanding information and recommendations to employers for finding, evaluating and eradicating mold infestations in their workplaces. Recently, the Environmental Protection Agency (EPA) has just updated its mold cleanup as part of its broader initiatives to help employers plan for floods and hurricanes (I wrote about updated hurricane information here). EPA’s approach is narrower than OSHA’s, since it focuses on post-incident activities.

Organizations with facilities that may be subject to routine water infiltration or leaks, or sudden flooding from hurricanes or other events – should consider both sets of information.

Mold Basics

Molds and other fungi are both ubiquitous and plentiful--they have been estimated to make up a quarter of all the biomass on the planet. Molds are found almost everywhere, and can grow on just about any surface, as long as moisture and oxygen are available.

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The Trump-era Environmental Protection Agency (EPA) has proposed to repeal and replace another of the Obama-era EPA’s signature efforts to reduce greenhouse gas (GHG) emissions. EPA has now proposed an “Affordable Clean Energy Rule”, to replace the “Clean Energy Plan” adopted in 2015 but stayed by litigation. The new rule softens the mandates in the earlier rule, and offers states more flexibility to design their own efforts to control greenhouse gas (GHG) emissions from existing fossil fuel-fired electricity generating units (EGUs) by eliminating Clean Power Plan requirements that states consider operational changes “outside the fenceline” of the regulated EGUs.

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The ongoing administrative battle over the Environmental Protection Agency’s (EPA’s) Accidental Release Prevention (ARP) program requirements has had another skirmish. On August 17, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) lambasted EPA’s latest deferral of ARP requirement revisions as outside the agency’s Clean Air Act (CAA) authority, and otherwise “arbitrary and capricious,” and vacated that deferral. However, the Court did nothing about EPA’s pending proposal to rescind most of those changes and reinstate longstanding requirements that many see as inadequate.

What’s the Current Status of ARP Requirements?

ARP rules specify “regulated substances” and threshold quantities for which onsite incidents could produce harmful offsite consequences, “risk management plan (RMP)” requirements to be instituted by facilities in order to manage those risks, and associated procedural and reporting requirements. In the last week before President Obama left office, EPA completed a multi-year review of its ARP program, responding to his Executive Order Number 13650 from 2013 (I wrote about these revisions here). Then, when President Trump took office, EPA reversed course, repeatedly deferring the effective date of those revisions while the agency reviewed them. In June 2017 EPA issued the latest of these deferrals, citing pending petitions for review by industry groups, and the agency’s need to reconsider the matter to justify deferring the effective date of the (Obama era) revisions for 20 months.

In May 2018 EPA completed its review, and published a proposal in the Federal Register to rescind almost all these expansions and return ARP requirement to those in place before 2017 (I summarized the proposal here). EPA also included an alternative proposal that retained a few more elements, and requested public comment on both versions no later than July 30, 2018.

What Has the DC Circuit Just Decided?

The DC Circuit case was brought by environmental and health groups, supported by a number of state governments. They claimed that EPA’s 20 month deferral exceeded the three month limit provided the agency by the CAA. They also noted that the agency had offered no substantial justification for overturning a final decision (the January 2017 revisions) after a multi-year rulemaking.

The case was heard by a 3 judge panel of the DC Circuit (interestingly, the panel include Judge Brett Kavanaugh, whose nomination to the US Supreme Court is pending and who took no part in this decision). The remaining judges agreed with the plaintiff’s arguments, found EPA’s delay to be “arbitrary and capricious”, and vacated the deferral rule.

Now What?

With the deferrals gone, the 2017 revisions take effect as issued in the waning days of the Obama administration. After the first two Trump Administration deferrals, the revisions would have been effective in June 2017 with staggered compliance deadlines. Facilities were to ensure coordination of their onsite activities with offsite response agencies by March 2018, institute enhanced RMP activities by March 2021, and formally revise their RMPs by March 2022. On September 21, the Court issued another order directing EPA to begin enforcing the 2017 rules immediately. This means that the coordination requirements identified above are active, and other elements remain on their original phase-in schedule..

But EPA’s May 2018 proposal to rescind most of the January 2017 amendments was not part of this case, and so is unaffected. As of this writing EPA has not made any statement about further appeal of the August 2018 court decision, but it’s safe to assume that the agency is proceeding with its own May 2018 proposal – presumably paying attention to the procedural flaws highlighted in the court order. I expect EPA will eventually issue some version of its proposed regulatory roll-back, which will trigger further litigation about whether the dramatic change is justified by the rulemaking record.

Self-Assessment Checklist

Does the organization own or operate any facility with any “stationary source” subject to ARP requirements?

• If so, has the organization considered the impacts on its operations and compliance position under potential revisions?

Where Can I Go For More Information?

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